[2021] KEELC 386 (KLR)
The court found that there was no evidence the applicant was ever served to appear before the tribunal, and thus he was likely unaware of the proceedings that led to the revocation of his land titles. The absence of proof that the applicant deliberately refused to appear, combined with the constitutional right to a...
Source-derived case information.
- Citation
- [2021] KEELC 386 (KLR)
- Parties
- Applicant: Joseph Muigai Wanene; Respondent: Lankisa Ole Merit
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 13 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
- Outcome
- application allowed
- Judges
- JE Gicheru
- Legal Topics
- Leave to Appeal Out of Time, Stay of Execution, Service of Process, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Muigai Wanene
Applicant
Lankisa Ole Merit
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Stay of Execution
Legal Issues
- 1 Whether the applicant has shown sufficient cause for failure to file the appeal within the prescribed time.
- 2 Whether the applicant was denied a fair hearing before the District Land Disputes Tribunal.
- 3 Whether the applicant is entitled to a stay of execution and admission of appeal out of time.
Ratio Decidendi
The court found that there was no evidence the applicant was ever served to appear before the tribunal, and thus he was likely unaware of the proceedings that led to the revocation of his land titles. The absence of proof that the applicant deliberately refused to appear, combined with the constitutional right to a fair hearing, justified granting leave to appeal out of time. The court exercised its discretion under Section 79G of the Civil Procedure Act in favor of the applicant, emphasizing that denial of a hearing would contravene Article 50(1) of the Constitution.
Court Disposition
application allowed
Orders
- The application dated 18/2/2019 is allowed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAJIADO
ELC MISCELLANIOUS APPLICATION NO. 13 OF 2019
JOSEPH MUIGAI WANENE.................APPLICANT
-VERSUS-
LANKISA OLE MERIT.......................RESPONDENT
RULING
This ruling is on the Notice of Motion dated 18th February, 2019.
The motion which seeks to have the Applicant’s appeal admitted out of time as well as a stay of execution is brought under Articles 40 and 50 of the Constitution of Kenya, Section 1A, 3 and 3A of the Civil Procedure Act and Orders 22, 42 Rule 6 and 51 of the Civil Procedure Rules and all enabling provisions of law.
The grounds for seeking the order are that the applicant is the registered proprietor of L.R. KAJIADO/KAPUTIEI-NORTH/4098 and KAJIADO/KAPUTIEI=NORTH/4099 and that he was never heard by the District Land Disputes Tribunal through no fault of his own. He craves to be heard on appeal.
The application is supported by an affidavit sworn by the Applicant in which he reiterates what is in the grounds and attaches four documents namely;
i. Copies of title deeds to the suit properties.
ii. Copy of award before the Kajiado Tribunal case no. 0012/2001 dated 11/10/2001.
iii. Copy of the decree in Tribunal Case No. 17 of 2002 at Kajiado Principal Magistrates Court dated 2nd September, 2012.
iv. Memorandum of Appeal in draft form
The application is opposed by the Respondent who has sworn a replying affidavit in which he deposes, inter alia, that the Applicant’s registration as owner was cancelled by the Court owing to fraud and there is unexplained delay on the part of the applicant.
Counsel for the parties filed written submissions on 17th March, 2021 and 7th October, 2021 respectively.
I have carefully considered the application in its entirety including the grounds, the affidavits, the annexures and the case law cited in the submissions.
I find the proviso to Section 79 G of the Civil Procedure Act gives this Court discretion to admit an appeal out of time if the Appellant satisfies the Court that he had sufficient cause for not filing the appeal in time.
The only issue for decision is whether the Applicant has satisfied the Court that he had a good reason for failing to file the suit in time.
I find that the application dated 18/2/2019 has merit for two reasons;
Firstly, there is no evidence to prove that the applicant was ever served to appear before the tribunal. If he was never served, then it means that he was not aware of those proceedings. It was in those proceedings that the titles to his land parcels were revoked.
Though the applicant has not stated the date on which he became aware of the decision that he seeks to appeal against, proof was needed that he deliberately refused to appear before the tribunal and this proof is lacking.
Secondly, the right to a fair hearing enshrined in Article 50(1) of the Constitution requires that a party who craves to be heard should not be denied that right.
For the above reasons, I allow the application dated 18/2/2019.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 1ST DAY OF DECEMBER, 2021
M.N. GICHERU
JUDGE